Introduction to Legal Systems

Legal System

• Law defined: Rules of conduct put into effect by state-organized and state-controlled force, accepted by the community
• Civil Law: Also known as Private Law or Contract Law, deals with relationships between individuals

Sources of Law

• National Sources:
  • Primary Legislation: Laws enacted directly by a legislative body (e.g. parliament)
  • Delegated Legislation: Laws made by an administrative body under authority conferred by statute
• International Sources:
  • Treaties (contracts between countries)
  • Customary Law (develops organically through collective behavior and agreements)
  • Case Law (principles and rules set forth in judicial findings)

Separation of Powers

• Legislator: Responsible for making laws (parliament)
• Judiciary: Responsible for interpreting laws and ensuring their constitutionality (courts)
• Executive: Responsible for implementing and enforcing laws (government)

Civil Law and Contract Law

• Freedom of Contract: Parties are generally free to enter into contracts on whatever terms they choose
• Offer and Acceptance: A contract is formed when one party makes an offer and the other party accepts it
• Dispositive: Modifiable by private agreements
• Imperative: Not subject to modification by individuals (e.g. statutory laws mandating tax payment)
• Relatively Imperative: Contrary provisions only in favor of the protected party (e.g. minimum standards protected)

Legal Traditions

• Civil Law Tradition: Derived from Roman law (e.g. French, German, Austrian legal systems)
• Common Law Tradition: Originated in England (e.g. English, American, Australian legal systems)
• Bijuridical: Combination of civil and common law (e.g. South African, Israeli legal systems)
• Customary Law: Develops organically through collective behavior and agreements (e.g. indigenous legal systems)
• Fiqh: Islamic legal tradition

Legal Systems and Cross-Border Conflicts

• Jurisdiction: Authority given to a court to decide a case
• Applicable Law: Specific substantive law that governs a conflict
• Arbitration: Procedure in which a dispute is submitted to one or more arbitrators who make a binding decision

Common Law Tradition

• Historical Development: Divided into four periods, including the Norman Conquest (1066) and the development of equity

• Defects of Common Law: Limitations in providing effective remedies, imbalance of power

• Rules of Equity: Ensure fairness and justice, including:

  • Equity shall prevail
  • Equity will not suffer a wrong to be without a remedy
  • Equity follows the law### Equity

• Anyone seeking help from an equity court must be willing to act fairly themselves (He who seeks equity must do equity)

• Equity rulings are directed at specific individuals, ordering them to do or not do something, focusing on personal obligations and responsibilities (Equity Acts In Personam)

Binding Precedent, Ratio Decidendi, Obiter Dictum, and Res Judicata

• Binding Precedent (Stare Decisis): courts follow decisions made in previous cases to ensure consistency and predictability in the law
• Ratio Decidendi: the legal principle or rationale behind a court's decision, which is binding on lower courts in future similar cases
• Obiter Dicta: comments made by a judge that are not essential to the decision, not binding in future cases but can be persuasive
• Res Judicata: a principle that means once a final decision has been made in a case, the same parties cannot litigate the same issue again in the future

Distinctions

• Distinction between Binding Precedent and Res Judicata
  • Binding Precedent: developing law, aimed at dispute resolution and developing the law
  • Res Judicata: aimed at dispute resolution, prevents relitigating the same issue
• Distinction between Ratio Decidendi and Obiter Dictum
  • Ratio Decidendi: fundamental reasons, binding, and essential to the decision
  • Obiter Dictum: non-binding, side comments or opinions by judges not necessary for the decision

Techniques to Handle the Ratio

• Following: a superior court follows the decision of an inferior court, approving the decision
• Distinguishing: a technique used to avoid overruling, pointing out differences between the current case and the previous one
• Overruling: depriving a prior decision of its power to bind any court in the future, essentially rejecting or changing the law established by a previous case

Advantages and Disadvantages of Binding Precedent

• Advantages:
  • Legal certainty and predictability
  • Precision in legal decision-making
  • Practicality, grounded in reality
• Disadvantages:
  • Rigidity, limiting a judge's discretion
  • Complexity, resulting in an overwhelming body of precedent

Civil Law Tradition

• Torts: a person who suffers damage may receive compensation from someone responsible or liable for those injuries
• Unjust Enrichment: one party is unjustly enriched at the expense of another, resulting in an obligation of restitution

Absolute and Relative Rights

• Absolute Rights (Rights in Rem or Title Rights): take effect against everyone, e.g. ownership
• Relative Rights: result from a statutory or contractual obligation, taking effect against a specific debtor only, e.g. contract

Contracts

• The life span of a contract includes:
  • Negotiation period: pre-contractual obligations, duties to inform, care, and protect
  • Contract conclusion to termination: contractual obligations, principal and ancillary duties, liabilities
  • After termination: subsequent obligations, duties to inform, care, and protect, obligation to maintain confidentiality
• Freedom of Contract: individuals are free to determine whether to conclude a contract, with whom, and with what content
• Possibility: no valid contract if performance is clearly impossible from the start
• No conflict with law or moral principles
• Form requirements: sometimes additional formal requirements must be met to form a valid contract